19741108 TZHC Arusha 1

TJRUSH. APPELLATE JURISDICTION HIGH COURT CRIMINAL .APPEL NO0 152 OF 1974 OPIGflAL RIMI1\1AL CIE 'NO0 50 OF 1974 • OF THE DISTRICT C0UR OF"MEZA, DISTRICT AT MUHEZ.A Before POAO MWITA Escj., - DISTRICT MAGISTRATE - - SALINU s/o HUSSEIN EDWARD JOHN A ND e'o 00o. APPELLANT S o RALIDI JU1VIA ' Pli . VERSUS THE REPUBLIC .'.'... RESPONDENT JUDGMENTO M.AKjME,J. On 6th February 1974 the house of the complainant' AYUU HAMISI, the paternal uncle of the third 'appellant, HALIDI JUMA, was ftllegedly broken into durthg the day and his sewing machine was stolen therefrom0 The main evidence imlicating the three appellants was that of RAMADHANI AYUBU PW.2, the son of•the complainant. Hetold the court of trial that on that day, while ,hisparents' were'away the three appellants went to the house and asked, him to go,s9me where with them to attend to a bicycle. He agreed but first went off to the bush to ease himself and by the time he returned to the house the appellants had left0 , He found the house':.broken"into and 'when hè got in he discovered that his fat'her t s sewing machine was no longer there. According to the record, the star wItness, P0W02'ws a' child of tender years. Admittedly, as it was held in REPUBLIC vs. CAIVTBELL (1956 2 Q.B 432 9 C.c0A), whether a child is of tender years is a matter of the good sense of the trial court but a useful guidance is that a child who is below or apparently below 14 is a child of tender years0 (See KIBANGENY .ARPP KOLIL vs. REPUBLIC 1959 E.A. 92). There are two points I'w1h to make. The first is, in the present case, although the evidence of PW.2 need not as a matter of law be corroborated, corroboration is normally looked for in such a case. The court has to warn itself of the danger of convicting without corroboration. In the instant case the alleged confession by the third appellant .was made while hO was in the custody of P.W.3, a member of the Tanu Youth League, who had clearly arrested him0 The allegation that the third appellant confessed to PWO3 was ndt supported by PW.5 1 , SIJI'TGURA MBLAWA., who would appear to be an independent witness, and did not in any event implicate the other appel1ants I am not satisfied that there was enough reliable corroborative evidence in the circumstances., and I am of the view that the learned trial Magistrate should have warned himself of the danger' reliance on P101.2's testimony was fraught with, which he did not do. I respectfully share the discomfort expressed by my learned brother who admitted the appeal for hearing and would not agree with Mr. Osinde, learne(3 , State Attorney, that the convictions were securely founded. Accordingly I aiiow all the three appeals, quash the convictions, and set'aide the sentences and order. 'f the appel1nts are riot ottirWiSe lawfully held they should be reLed immediatelr. -2- The second pQiflt I wish to make is that I am of tho r view that a trial court should, if hnly briefly,, record the voir dire which led it to the :coriclusion th&ta.;chtld witness should or should not take the oath. I find support for this view inthe words of....tndhui J0i0, as he then was, in Kohl's cas€,supra. He said in. that case that the investigation into whetherthe meaning of an qth is understood. 'ned(notbea leiigthy one, but it•rnust.be made and when made the trial 3udge riust record "0 hare in my view must refei to the •invsti.gation itself and not merelytothefact thatsuch invatiation was made0 It seems to me a necessary• exercise :bcaue only then would an appellate :coU't1JC ab1 tojudCa to whether the conclusion reached by the court oftrial as regards whether or not to administer the oath, was reasonable0 ppellants absent uepreénted OThDE for the Respondent / (LOMO 1AK(ME) JUDGE Delivered in court at rush'i this 8th Day of Novcrhr, 174